The design of the tribute represents a limitation on the free movement of capital

Finance ensures that it is still early to advance future actions

The Court of Justice of the European Union (EU) It has been determined in a ruling that the tax on inheritance and donations in Spain It violates Community legislation to establish a difference in treatment between residents and non-residents in implementing tax cuts.

The failure condemns in coastal Spain and responds to a resource lodged against Spain in March of 2012 by the Commission European (CE) on the grounds that some aspects of State successions and donations tax legislation were incompatible with the Treaty on the functioning of the EU in terms of the free movement of people and capital and with the agreement on the European economic area.

The Court of Justice accepts the claims of Spain in the relative to the free movement of persons, the EC has not shown how Spanish legislation may affect such freedom, but confirms that this “constitutes a restriction of the free movement of capital“.

Finance analyzes the sentence

Sources of the Ministry of finance brought to RTVE.es are “analyzing the judgment” and is soon to advance future actions, Although it shuffles the possibility of asking a technical report to the law of the State.

After the statement, the President of the Union of technicians of the Treasury (Gestha), Carlos Cruzado, He pointed to RTVE.es to the Ministry “you need to take some determination” to adapt legislation and that “more reasonable would be use to modify the law of successions and donations as a whole“.

Adds that competition between autonomous communities has led to “very high differences” among residents in different territories and one “new State regulation” You should eliminate discrimination, as recommended by the Committee of experts in its report on the fiscal reform in its day.

Assigned to the autonomous tax

In Spain, Inheritance and gift tax is a State tax, applicable throughout the national territory, except in the Basque country and Navarra, that it have its own fiscal regime, but is assigned to the autonomous communities, that it may adopt rules, that they complement or substitute to the State.

The rules of the CC. AA. they can only affect the elements of the settlement of the tax, subsequent to the determination of the tax base. The EC maintains that autonomy can set different tax cuts, it applies only in case of exclusive connection with its territory.

Therefore, succession or donation involved a person in that non-resident in Spanish territory, or that it is intended to a good property located outside the Spanish territory, You can not benefit from these reductions tax. According to the Commission, This difference in treatment is contrary to the free movement of people and capital.

Given that all communities have exercised their jurisdiction in this regard, the EC holds that the tax burden borne by the resident taxpayer in them is considerably lower than that imposed by State law. This applies only in cases of real contribute obligation (the derivative of the acquisition of property and rights) and in cases where the CC. AA. do not have or have not exercised their powers.

According to the Commission, discrimination occurs when the decedent or donor, the heir or grantee non-resident territory in Spanish and in the case of donations where the immovable object of transmission are located abroad, regardless of the place of residence of the taxpayer.

Restriction on the free movement of capital

The EU Court said that, “to not be able to enjoy these tax benefits, the value of that succession or that donation will be reduced” So what “This reduction constitutes a restriction of the free movement of capital“.

Remember also that also constitute prohibited measures, for being contrary to the free movement of capital, which can dissuade non-residents from investments in a Member State or of keep such investments.

To be accepted, the difference in treatment must affect situations which are not objectively comparable or be justified by overriding reasons of general interest. In the Spanish case, the Court considers that no difference there is between the objective situation of a resident and a non-resident that can sustain a difference of treatment, all differential treatment regarding the reductions will lead to discrimination.

The Court does not accept the arguments of Spain relating to the pursuit of the legitimate objective of ensuring the effectiveness of fiscal controls and the fight against tax evasion within the European economic area, because it has not shown how the fact that there is an agreement of mutual assistance in this regard could justify legislation under attack by the EC.